(1.) THIS R.P. No. 50-A/2001 is the outcome of the proceeding which was registered in the Court of Civil Judge, S.D., Nanded, as a Special Darkhast No. 23/1991. The said Special Darkhasl is based upon the judgment and decree passed in Special Civil Suit No. 28/1968 by the Civil Judge, S.D., Nanded. As per the Darkhast Application (Exh. No. 1 of Special Darkhast No. 23/1991) initiated before the Nanded Court by the Decree holder/Creditor-Bank, the amount of Rs. 6,84,859.89 ps. claimed towards the decreetal amount as a principal and in addition to it the amount of Rs. 8,12,487.90 ps. claimed towards the interest @ Rs. 6% per annum from 1st December, 1971 to 8th September, 1991 and the costs of the execution proceeding is claimed of Rs. 1,158.75 ps. As such, the total amount claimed comes to Rs. 14,98,506.54 ps.
(2.) In the beginning the execution was sought against the original judgment debtor Nos. 1 to 4. However, in due course of time, the judgment debtor Nos. 2 and 3 reported dead and their L. Rs. have been brought on record by way of necessary amendment. In this proceeding, the undisputed facts are required to be stated in brief for the purpose of settling the controversy and passing necessary orders. Admittedly, the original proceeding was against the defendant Nos. 1 to 4 and 5. The defendant No. 5 was Official Assignee,' Bombay, appointed by the Hon'ble High Court, Bombay. The said suit of the Bank was decreed in terms of compromise filed before the Civil Judge, S.D., Nanded, in favour of the plaintiff Bank for Rs. 6,84,859.89 ps. with interest @ Rs. 6% per annum from the date of signing the compromise till the date of realisation against the defendant Nos. 1 to 4. The said compromise decree was challenged before the Hon'ble High Court by the judgment debtor No. 4 in Appeal No. 268/1972. The said appeal was also disposed of on 13th July, 1973 by compromise before the Hon'ble High Court.
In view the said compromise before the Hon'ble High Court, it discloses certain modifications in the compromise decree passed by the Civil Judge, S.D., Nanded. As per the said modified compromise decree before the Hon'ble High Court, the judgment debtors were to sell the pledged goods within twelve months and for such sale of pledged goods the Bank was to co-operate with the judgment debtors by giving necessary samples of the pledged goods and also the Bank was to release the pledged articles in proportionate against the deposit of the amount. Failure to sell the said pledged goods by the judgment debtors within the period of twelve months, the Bank was entitled to execute the decree against the partnership assets as well against the judgment debtor Nos. 1 to 4 jointly and severally.
(3.) ACCORDING to the decree holder Bank, the judgment debtor Nos. 1 to 4 did not comply the terms of compromise and therefore the decree holder Bank filed the Special Darkhast No. 34/1976 in the Court of Civil Judge, S.D., Nanded, and had prayed for attachment of Laxmi Mansions, a mortgaged house property. However, in the said execution proceeding, the objection was filed by the judgment debtor No. 4 with respect to the said house property Laxmi Mansions submitting that it was belonging to the minor Pankajkumar and it cannot be the subject matter for sale. ACCORDINGly, the Civil Judge, S.D., Nanded, was pleased to pass the order below Exh. No. 1 in the said Special Darkhast No. 34/1976 holding that the house property Laxmi Mansions situated at Nanded cannot be sold for realisation of the decreetal amount. Consequently, the request of the decree holder to put the said Laxmi Mansions property on sale came to be rejected upholding the objection raised by the judgment debtor No. 4. The said order of the Civil Judge, S.D., Nanded, is dated 6th March, 1979 on Exh. No. 1 of the said Special Darkhast No. 34/1976. The learned Civil Judge, S.D. Nanded, was also pleased to pass the order that the decree holder was at liberty to suggest other partnership assets and mortgaged security, pledged goods or other assets of the judgment debtors which can be put to sale for realisation of the decreetal amount. Thereafter, in due course of time, the decree holder could not mention any property for sale in the said execution proceeding, but a Civil Revision was preferred before the Hon'ble High Court against the said order of the Civil Judge, S.D., Nanded, which was numbered as a Civil Revision Application No. 674/1979 in the High Court.;